Members Weigh In on Draft Disclosure Order

Congressional Democrats are gathering signatures this week on a letter to the White House supporting a draft executive order that would compel government contractors to disclose their political spending.

The letter by Rep. Mike Capuano (D-Mass.), which could be sent as early as this week, appears to be the first formal move by lawmakers to support the plan in the wake of bipartisan opposition to the proposal. The draft executive order would require contractors bidding on federal projects to disclose contributions of more than $5,000 made to federal candidates, parties, committees and third-party groups.

A flurry of letters to the White House have alternatively praised and denounced the proposed executive order since a draft leaked in mid-April. Coalitions of House and Senate Republicans — and a growing number of Democrats — have publicly criticized the proposed order as politicizing the contracting process, chilling free speech and circumventing the wishes of Congress, given that the Senate has already rejected a measure requiring disclosure of donations to third-party political groups.

Government watchdog organizations and a group of small businesses have lauded the effort as a way to track the explosion of campaign spending in the wake of the Supreme Court's 2010 decision in Citizens United, which allowed unlimited spending by corporations, unions and other groups.

Privately, both sides of the debate are worried. Republicans report their deeper concern is that implementation of the draft order could depress contributions to the third-party groups considered pivotal to the GOP's success in 2010 and vital to the party's political prospects in 2012. Government watchdog groups wonder whether the time lapse since the draft executive order was leaked means the plan has been derailed.

"The Obama administration has not acted very aggressively in terms of any of the statements that have come out about money in politics generally," the leader of one group said. "Because of the controversy, I'm concerned he is going to back down again."

An April 13 draft of the proposed executive order on "disclosure of political spending by government contractors" stated that "to ensure an efficient and economical procurement process, every contracting department and agency shall require all entities submitting offers for federal contracts to disclose certain political contributions and expenditures that they have made within the last two years." The draft also directed that "all disclosed data shall be made publicly available in a centralized, searchable, sortable, downloadable and machine readable format on data.gov."

Though many government contractors are already required to report to the Federal Election Commission certain kinds of political spending, including direct payments to candidates, campaigns and parties, the order would also compel the disclosure of money given to third-party groups with the "reasonable expectation that parties would use those contributions to make independent expenditures or electioneering communications."

The draft order's focus on government contractors — and not labor unions or federal grantees — has drawn the ire of lawmakers, including Democrats in contractor-heavy districts and some who supported prior campaign contribution reform efforts such as the ill-fated DISCLOSE Act, which was intended to beef up campaign disclosure in the wake of the Citizens United decision.

Democratic Reps. Steny Hoyer (Md.) and Gerry Connolly (Va.) have said they oppose the order in its current form. Sen. Claire McCaskill (D-Mo.), chairwoman of the Homeland Security and Governmental Affairs subcommittee handling contracting issues, joined Sen. Rob Portman (R-Ohio) in criticizing the draft order in a May 12 letter. Homeland Security and Governmental Affairs Chairman Joe Lieberman (I-Conn.) and ranking member Susan Collins (R-Maine) also signed the letter.

"I give her credit," Portman said of McCaskill, who he hopes will hold a hearing on the matter. "She's a supporter of DISCLOSE, she has reasons not to take on her leadership and the White House right now, but I think she's doing what she thinks is right, and this is one of those issues that really goes to the core of whether you believe contracting ought to be politicized or not."

Republicans are particularly concerned about the effect that such a disclosure regimen might have on the fundraising push leading up to the 2012 elections. Organizations not directly affiliated with the political parties — the sort of groups bolstered by the Citizens United decision — spent more than $300 million during the 2010 midterm elections, according to the Center for Responsive Politics.

Republican political operatives bestow immense credit for their party's competitiveness in 2010 on organizations such as Crossroads GPS and the American Action Network, both 501(c)(4) organizations. These groups can accept large donations that they do not have to disclose, and Republicans believe their participation in the campaign brought the party to parity with Democrats, who typically benefit from the largesse of organized labor.

Crossroads spokesman Jonathan Collegio described the Obama administration proposal as a "raw political maneuver" that would give the White House the means to create "political enemies lists." Collegio dismissed claims of the proposal's supporters that it is based in a desire to improve transparency and good-government practices.

"It has the distinctly partisan slant of going after contractors — businesses — while exempting grantees, usually liberal nonprofits," Collegio said. "Any time you empower an executive branch with the means to create an enemies list, as this EO does, you invite intimidation into what should be a clean, nonpartisan procurement process."